By the said judgment, the High Court denied him absorption as an Assistant Teacher in the Higher Secondary Section and also rejected his claim for continuity of service. The Tribunal passed an interim order on 03.12.1990 and it is an admitted fact that he continued till 12.11.1994 when his services were again terminated, after the Tribunal had dismissed his application on 31.10.1994. We have examined the question of regularization of substitute teachers in detail in our order on O.A. The appeals are, therefore, allowed, the judgments of the Tribunal dated October 31,1994 in the applications filed by the appellants are set aside and the said applications are allowed with the direction that the appellants shall be considered for absorption on regular basis on the post of Assistant Teacher by the Screening Commit- tee in accordance with para 5.1 of the master circular 5 dated January 29, 1991, and in case the appellants are found suitable for such absorption by the Screening Committee, they shall be restored to the post held by them with continuity of service. In the impugned judgment the Central Administrative Tribunal has observed that the appellants should be given an opportunity to appear before the Selection Board if they are otherwise eligible as and when such selection is made and has expressed the hope that the respondents would try to accommodate them even on temporary basis if there happens to be any casual vacancy available from time to time and for that purpose they may be placed on waiting list of substitute teachers. Having regard to the facts and circumstances of these cases, it is directed that if the appellants have crossed the prescribed maximum age, they may be considered for regular selection by giving relaxation in that regard. The grievance was that firstly, the appellant should have been absorbed in the post of Assistant Teacher instead of being absorbed as a Primary Teacher with admissible continuity of service in the pay-scale of Rs.5500-9000 and not Rs.4500-7000 that was now offered under the 02.01.1998 order; secondly, the appellant is entitled to the pay-scale and allowance admissible to the post of Assistant Teacher Grade- I, namely, Rs.1640-2900 from 05.12.1989 instead of the pay- scale of Rs.1200-2040 that was offered.
Ratna Roy (3) Shri Subal Chandra Chakraborty (4) Smt. Anupama Bhowmick and Shri Pijush Kanti Das as Substitute teacher in different spells may be taken into account for all purpose except Seniority from the date of acquiring of temporary status with treating breaks as Dies-non. No 149(G) of 1989] were granted continuity of service and the past service rendered by them as substitute Teacher in different spells was taken into account for all purposes except seniority from the date of acquiring of temporary status by treating breaks as dies non. The Central Administrative Tribunal, Calcutta Bench, by its judgment of 28.11.2008, held that the appellant had only 10 been appointed as a primary teacher on 05.12.1989 in the pay-scale of Rs.1200-2040; that functioning as a mathematics teacher for Classes XI and XII, as a stop-gap measure, would not entitle him the rights of a regular appointee to the post of Post Graduate Teacher; that the orders of this Court did not, in the appellant’s case, direct specifically regarding continuity of service, as was done in the other cases and the appellant’s case being one of regular absorption, no continuity of service can be given to him. Uttara Babbar, learned counsel for the appellant, contends that under the Master Circular dated 29.01.1991, Clause 4.3, 5.1 and 6 would apply to the case of the appellant. According to the learned counsel, the appellant having completed three months of continuous service as a substitute teacher is entitled to reckon his date of appointment as 04.03.1990 (on completion of three months) since he now stands duly absorbed by the order of 02.01.1998.
Learned counsel lays particular emphasis on the fact that the Tribunal in the appellant’s case in O.A. Jayasree Deb Roy (Dutta) had specifically recorded that the judgment of the Tribunal in O.A. Learned counsel contends that, having done so, there was no plausible reason to discriminate the case of the appellant when it came to the grant of relief regarding continuity of service on the ground that this Court had not made any specific order regarding continuity of service. Jayasree Deb Roy (Dutta) (supra), there was a specific finding that the appellants in that case were entitled to continuity of service in accordance with para 5.1 of the 16 Master Circular dated 29.01.1991 in the event the Screening Committee found them fit for absorption. Contrasting this with the judgment of this Court in the appellant’s case, learned counsel would contend that no such direction for granting continuity of service in the event of absorption was given in the appellant’s case. 17 Claim for absorption as Assistant Teacher – Higher Secondary Section: 29. We are of the view that the appellant’s claim for absorption as Assistant Teacher in the Higher Secondary Section in the pay-scale of Rs.5500-9000 is not tenable. Before this Court too, no claim for regularization as Assistant Teacher in the Higher Secondary Section was made.
This issue, however, need not detain the Court any longer as at no point in the first round of proceedings, the appellant made such a claim; the Screening Committee having considered him, pursuant to the orders of this Court, has thought it fit to absorb him only as a primary teacher; the Screening Committee itself was pursuant the orders of this Court and based on the Master Circular of 29.01.1991 wherein the claims of the candidates like the appellant were examined; the records of his appointment as a substitute 19 teacher admittedly show that he was only appointed as a substitute primary teacher; it is on the completion of three months as substitute primary teacher that he acquired temporary status and on absorption now he became entitled to certain benefits under the Circular which we have elaborated herein above. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. It was then contended on behalf of the appellants that neither the Recruitment Rules of 1971 nor the Seniority Rules of 1982 provided for carrying forward the vacancies falling in either category. It would, therefore, be too late to raise such a contention when the seniority list has been finalized pursuant to the judgment of MAT, Bombay Bench in Transfer Petition No 822 of 1991.” Interest reipublicae ut sit finis litium : 35.
The only reason given in the order denying continuity for the appellant while granting continuity of the 23 same for the others is that, in the case of the appellant, this Court had not directed any specific order regarding continuity of service. 4.4 The conferment of temporary status after completion of four months continuous service in the case of others and three months continuous service in the case of substitute teachers mentioned in paras – 4.2 and 3 above does not entitle them to automatics absorption/ appointment to Railway service unless they are selected 24 in the approved manner for appointment or absorption to regular posts. 4.5 Service of substitutes will count for Pensionary benefits from the date of completion of four months (3 months in the case of teachers) continuous service provided it is followed by absorption in regular Group-C’ (Class lll)/Group-‘D’ (Class -IV) Service without break.”…… “5.
